The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Amendment Rules 2017

Ability to act if no named person

3.—(1) In rule 2 (interpretation)—

(a) in paragraph (a) of the definition of “party”, at the end insert “except a person who initiated them by virtue of a provision giving a listed initiator authority to act(1)”;

(b) after paragraph (1) insert—

“(1A) The “listed initiator requirement” is that the application or appeal is accompanied by—

(a) a written statement by an approved medical practitioner confirming that in the opinion of that practitioner the patient is incapable in relation to a decision as to whether to initiate an application or appeal; and

(b) a written statement from the person making the application or appeal stating—

(i) that the patient has attained the age of 16 years and has no named person;

(ii) which of the categories of person who may initiate the appeal or application by virtue of the provision giving a listed initiator authority to act the person falls within; and

(iii) that the patient has not made a written declaration which precludes the person from initiating the appeal or application by virtue of that provision.

(1B) A reference in these Rules to a provision giving a listed initiator authority to act is a reference to—

(a) section 257A of the Mental Health (Care and Treatment) (Scotland) Act 2003;

(b) regulation 8A of the Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008(2); and

(c) regulation 13A of the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005(3).”.

(1)

Section 257A (ability to act if no named person) was added to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) by the Mental Health (Scotland) Act 2015 (asp. 9). It applies where a patient does not have a named person, is 16 years old or over and is incapable in relation to a decision about the initiation of an application or appeal in their own case.

(2)

S.S.I. 2008/356 (“the 2008 Regulations”) was amended by S.S.I. 2017/232 which inserted regulation 8A which allows certain people mentioned in the regulation the ability to initiate an appeal if the patient concerned does not have a named person. It also amended the 2008 Regulations so that they may also be cited as the Mental Health (Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008.

(3)

S.S.I. 2005/467 was amended by S.S.I. 2017/229 which inserted regulation 13A which allows certain people mentioned in the regulation the ability to initiate an appeal where the patient has no named person.